Aboriginal Title Ruling in Richmond Sparks Concern Among Local Residents, Other First Nations

Photo Credit: CBC News

On Aug. 7, the BC Supreme Court granted Aboriginal title to the Cowichan Tribes on 7.5 square kilometres of land in Richmond, and fishing rights on an adjacent arm of the Fraser River. However, the land in question is currently occupied by privately owned homes, sparking concern from the government, local homeowners, and other Indigenous groups.

In her ruling, Justice Barbara Young declared that Crown and city titles within the relevant 7.5 square kilometres are "defective and invalid." In the court case, Cowichan never sought a similar designation for privately owned land. However, Justice Young’s ruling included language indicating that allowing private ownership of land, or fee simple title, in the area was an overstepping of Cowichan’s current title to the land, according to CBC News.

“To achieve reconciliation means that the status quo must sometimes change. In the process of that change, some will bear the brunt,” Justice Young wrote. “Sometimes the hardship will be borne by Indigenous peoples and First Nations, and sometimes it will be borne by non-Indigenous Canadians.”

Still, the judge did not rule that the fee simple titles of the land in question are invalid. Fee simple is a legal term used in real estate that describes an owner’s complete and total ownership of a land and all the properties on it. BC is obligated to Cowichan “to negotiate in good faith reconciliation of the Crown-granted fee simple interests held by third parties,” the ruling states. 

The most significant provision of granting Aboriginal title to an Indigenous group is that their title allows them to have a say in land-use decisions involving the relevant land, Aboriginal title lawyer Ryan Beaton told CBC News. 

"So you can have fee simple land as a fee simple land owner — you have your property and a house — while the province still has jurisdiction,” said Beaton.

“It seems to my mind, and I think to most observers, that Aboriginal title would be a third order of lawmaking power, where the title holders would make laws over the Aboriginal title land alongside provincial and federal law.” However, he cautions that there is still some ambiguity that has been left unresolved by the courts.

“So far, the courts, especially the Supreme Court of Canada, ha[ve] been hesitant to explicitly say Aboriginal title comes with law-making power,” said Beaton.

Furthermore, the discussion surrounding this issue has been ongoing for years, Khelsilem, a former elected councilor for the Squamish Nation, told CBC News.

“The uncertainty has always existed [...] It's existed for 150 years. The courts have repeatedly said the Crown needs to behave honourably and it needs to negotiate in order to resolve these things and it's actually because the government has refused to do that work that we're in the uncertainty that we're in now.”

However, the Cowichan say that their aim in this court case is not to displace any private property in the area. “They've only sought to get land back from the government in this area,” lawyer Tim Dickson explained to CBC News. As well, he says, there have been no successful court cases in Canada that “sought to kick individual landholders off of their lands.”

Similarly, Cowichan Tribes lawyer David Robbins says that it’s now BC’s job, and not his client’s responsibility, to manage fee simple title in the context of the recent court ruling.

“They have always understood that fundamentally, this case is about resetting their relationship with the Crown,” he said, referring to the Cowichan. 

Nevertheless, appeals in the case are being launched by federal and provincial governments, and by the Musqueam and Tsawassen nations.

Musqueam Nation Chief Wayne Sparrow told CTV News that his nation is “deeply concerned” about the ruling, and the precedent it may set for future land claims.

“Like many Musqueam families, I come from generations of fishers who worked tirelessly to protect our territory, rights and resources,” he said. “We will continue to follow the guidance of our elders and ancestors by vigorously appealing this decision,” Sparrow said.

Richmond Mayor Malcolm Brodie said the court’s decision “compromises the entire land title system” in BC by putting fee simple ownership of properties in jeopardy. Property owners “can no longer rely on their title confirming a fee simple interest as conclusive evidence of absolute ownership of their land,” he told CTV News.

BC Attorney General Niki Sharma added that the court decision may create “significant unintended consequences” on fee simple land rights in BC, as per CTV News.

Meanwhile, local residents also face the consequences of the court case’s result.

“It’s scary,” Judy Kutny, who’s had fee simple title in the area for 35 years, told The Vancouver Sun. She doesn’t think the Cowichan should have title to her land, since her husband’s family has owned the property for over 50 years. 

During that time, the family has paid taxes on the property and made improvements, and three generations have lived in the home, she said. “That was then, this is now,” said Kutny. “You can’t waltz back and say this used to be ours.”

Brodie estimates that 100 to 150 properties could be affected by the court ruling, including blueberry farms, a golf course, and other businesses.

However, the Cowichan still feel that they are the proper owners of the land.

“At this time, we raise our hands to the generations of leaders who fought with nuts’a’maat shqwaluwun (one mind, one heart, and one spirit) for the return of our settlement lands at Tl’uqtinus [a former village site in the area in question] and our fishing rights in the south arm of the ‘Fraser River,’ ever since the Crown began its unauthorized alienation of our lands there in the 1870s,” reads a press release from the Cowichan Tribes.

The Richmond case may, however, be similar in nature to the legal framework surrounding land rights in Haida Gwaii, following a 2024 agreement from the provincial government that granted the Haida National Aboriginal title to all land across the islands.

The province claims that the agreement does not affect fee simple title, but still, its decision has not escaped criticism.